(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 23, 1997 -- Decided July 17, 1998
PORITZ, C. J., writing for the Court.
In this attorney disciplinary case, the Court considers whether an attorney should be disbarred for
theft of funds from the law firm in which he was a partner.
Respondent, Joel A. Greenberg, was admitted to practice in New Jersey in 1975. In September
1993, he consented to temporary suspension of his license. At the time of his temporary suspension,
Greenberg was a partner in the Atlantic City law firm of Horn, Goldberg, Gorny, Daniels, Paarz, Plackter &
Weiss (“the firm”). He primarily represented health-care providers in medical malpractice actions.
Beginning in June 1991 and continuing until August 1993, Greenberg misappropriated over $34,000
in firm funds and used them for his own purposes. Specifically, in June 1991, Greenberg received a referral
from a Maryland law firm. When he subsequently settled the matter, he kept the firm's $7,500 fee for
himself, instead of depositing it into the firm's trust account. Although he had attempted to persuade the
insurance carrier to issue two checks in the matter (one payable to the clients representing their share of the
proceeds and one payable to Greenberg personally), the carrier had refused to do so. Therefore, when he
received the settlement checks, Greenberg endorsed them over to the clients and requested that they forward
their personal check to him in the amount of $7,500. On receipt of the clients' check, Greenberg kept the
fee without the firm's authorization.
When the Maryland firm subsequently sought it's referral fee in the matter, Greenberg presented a
check request to the firm's bookkeeper in the amount of $3,000 payable to the Maryland firm. On the
request form, he indicated that the check was needed for the reimbursement of expert fees pursuant to court
order. The transmittal letter accompanying the request form, prepared by Greenberg, indicated that the
check was for “reimbursement of expert testimony” in an unrelated matter.
Thereafter, from August 1992 until August 1993, Greenberg obtained an additional $27,025 in firm
funds for his personal use without the firm's knowledge or consent by submitting a series of false
disbursement requests to the firm's bookkeeping department. He would either instruct a secretary that he
needed a firm check or dictate the check request on tape, after which an expense account voucher would be
prepared and signed, either by Greenberg himself or by a secretary in his behalf. The check request would
be supported by a transmittal letter prepared by Greenberg, which would be addressed to the payee. After
receiving the firm checks, Greenberg would forge the signatures of the ostensible payees and retain the funds
for his personal use or deposit them in the corporate account of Southern Shore Medical Supply (“SSMS”),
a fictitious entity incorporated by Greenberg in December 1992 for the sole purpose of laundering the firm
checks. Greenberg submitted eight similarly structured requests in the twelve month preceding and up to
August 17, 1993.
By mid-June 1993, Greenberg had fraudulently obtained over $34,000 in firm funds. Then, on
August 17, 1993, he submitted his final check request to the bookkeeping department, payable to SSMS in
the amount of $23,500. The transmittal letter accompanying the request indicated that the disbursement was
the “final installment” for the purchase by Sawyer Electric, a firm client, of an interest in SSMS. William
Colavito, the firm's chief financial officer, questioned Greenberg about the request. Greenberg explained
that the disbursement was to be counted against a $90,000 retainer from Sawyer Electric placed in the firm's
business account earlier that year. When pressed on how the transaction could be charged against firm
funds, Greenberg said, “If anyone ever found out about this I would be disbarred.” Colavito reported the
conversation to the firm's managing partner, who subsequently met with Greenberg. Although the firm
discovered the prior SSMS disbursements with Greenberg's endorsements, it took no action.
Three weeks later, on September 11, 1993, Greenberg approached friend and attorney Paul
D'Amato during a function at his synagogue. Greenberg did not explain what was wrong until the following
day in D'Amato's office. At that time, he admitted that he had taken firm funds. While in D'Amato's
office, Greenberg huddled in a corner and began to cry. As he calmed, he asked D'Amato to “get [him]
away from the practice of law,” as he did not think he knew what he was doing anymore. Ultimately,
Greenberg gave D'Amato permission to call his partners and to contact the Office of Attorney Ethics
(OAE) and the Atlantic County Prosecutor's Office. No charges were filed by the prosecutor and
Greenberg made full restitution to the firm.
On September 22, 1993, Greenberg entered into a consent order temporarily suspending his license
to practice law. Thereafter, on January 13, 1995, the OAE filed a formal complaint against Greenberg.
During several days of hearing before a special master, Greenberg presented the testimony of his wife,
friends, fellow attorneys, and two expert witnesses. The witnesses testified to Greenberg's reputation in his
community and to changes in his personality from August 1990 to August 1993. All of the witnesses
indicated that they had observed a marked personality change in Greenberg during that time and that he had
become withdrawn and despondent.
Dr. Chazin, Greenberg's treating physician and first expert witness, testified that Greenberg
suffered from a chronic, low-grade form of depression, which he attributed to childhood developmental issues
and to a family history of depression. Although Dr. Chazin believed that due to his condition, Greenberg
“did not have the requisite intent to steal from his law firm, he did not believe him to be “McNaughten
insane.” He expressed the opinion that Greenberg was unlikely to repeat his “antisocial and self-destructive” behavior, and that he was ready to resume the practice of law.
Dr. Glass, Greenberg's second expert witness, also diagnosed Greenberg as suffering from
depression at the time of the thefts and agreed with Dr. Chazin that Greenberg did not possess the requisite
intent to “knowingly misappropriate or steal” from the firm. Dr. Glass agreed that Greenberg was not
delusional or “McNaughten insane,” and that he knew the difference between right and wrong at the time of
his misconduct.
Dr. Sadoff, testifying on behalf of the OAE, agreed that Greenberg suffered from major depression,
that he was not delusional, and that he was not “McNaughten insane” at the time of his misconduct.
Although Dr. Sadoff agreed that it was unlikely that Greenberg would engage in misappropriation again, he
concluded that Greenberg's condition did not deprive him of knowledge of what he was doing or of the
ability to control his behavior.
At the conclusion of the hearing, the special master found that Greenberg had not demonstrated
“the magnitude of illness, impairment of judgment or severity of disability . . . [necessary] to provide
mitigation or defense” for his acts of misappropriation. She therefore recommended that Greenberg be
disbarred.
A four-member majority of the Disciplinary Review Board (DRB) agreed with the special master
and found that Greenberg knowingly committed misappropriation. The majority recommended that
Greenberg be disbarred for his misconduct.
The matter is before the Supreme Court for review pursuant to Rule 1:20-16(a). By leave of the
Supreme Court, the New Jersey State Bar Association participated in this case as amicus curiae, and asks the
Court to reexamine the rule enunciated in In re Wilson,
81 N.J. 451 (1979), and extended in In re Siegel,
133 N.J. 162 (1993), that misappropriation of client or law firm funds will almost invariably result in disbarment.
HELD: Greenberg's mental illness, however severe, did not deprive him of the knowledge that he was taking
firm funds, that the funds belonged to his firm, or that his firm had not authorized the taking and disbarment
is the only sanction that will maintain the public confidence in the integrity of the legal profession.
1. The Court has repeatedly rejected opportunities to create exceptions to the Wilson rule, even where the
misappropriation was the product of severe personal and financial hardship. (pp. 14-15)
2. Because of the harshness of Wilson, and because the sanction of disbarment in New Jersey is permanent,
the Court has demanded clear and convincing evidence that an attorney has misappropriated funds
“knowingly.” (pp. 15-16)
3. Public confidence in the integrity and trustworthiness of lawyers requires nothing less than disbarment in
those cases where it has been shown, by clear and convincing evidence, that an attorney has misappropriated
client funds. (pp. 17-18)
4. There is no ethical distinction between a lawyer who for personal gain willfully defrauds a client and one
who for the same untoward purpose defrauds his or her partners, and the Wilson rule applies equally to this
case. (pp. 18-21)
5. Even prior to the Court's decision in Siegel, it was clear that acts of theft often carried the sanction of
disbarment. (pp. 21-22)
6. The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing
misappropriation. Rather, it is the attorney's mere act of taking a client's money, knowing that he or she had
no authority to do so that requires disbarment. (pp. 22-25)
7. Greenberg's pattern of activity, which consisted of a complicated system of misappropriation, does not
suggest an attorney suffering such a loss of competency, comprehension or will that he was unable to comply
with the rules of ethics. (pp. 25-28)
8. Greenberg's mental illness did not meet the standard set by the Court in In re Jacob,
95 N.J. 132 (1984),
and therefore failed to support his asserted affirmative defense to knowing misappropriation. For the same
reasons, Greenberg's mental illness does not serve to mitigate his conduct and to hold otherwise would be to
excuse Greenberg without exonerating every lawyer who suffers personal hardships and misappropriates funds.
(pp.28-29)
9. The Court cannot accept as mitigating factors Greenberg's admission of guilt and subsequent voluntary
suspension of license because he acted only after his conduct was discovered. Moreover, Greenberg's
restitution is of little importance as restitution may depend more on financial ability or other favoring
circumstances than repentance and reformation. (pp. 29-30)
10. Greenberg's acts of theft cannot be excused by his subsequent treatment as certain acts by attorneys so
impugn the integrity of the legal system that disbarment is the only appropriate means to restore public
confidence in it. (pp. 30-31)
11. Attorneys who suffer from mental illness, alcoholism, or drug addiction should seek help as soon as
possible and certainly if they are about to engage in activities that will irreparably damage their professional
reputation and the public's confidence in the integrity of the Bar. (pp. 31-32)
Greenberg is DISBARRED and is ordered to reimburse the Disciplinary Oversight Committee for
appropriate administrative costs.
JUSTICE STEIN filed a separate dissenting opinion, disagreeing with the Court's disposition. He did
not view this case as one in which the Court should reaffirm its continuing commitment to the Wilson rule or
communicate its unwillingness to depart from or modify Wilson's rationale. Rather, Justice Stein would find
Wilson inapplicable because no client funds were taken and would have applied Siegel only prospectively.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in CHIEF
JUSTICE PORITZ's opinion. JUSTICE STEIN filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
D-
40 September Term 1997
IN THE MATTER OF
JOEL GREENBERG,
An Attorney at Law,
Argued September 23, 1997 -- Decided July 17, 1998
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Michael J. Sweeney, Deputy Ethics Counsel,
argued the cause on behalf of the Office of
Attorney Ethics.
Joseph H. Kenney argued the cause for
respondent (Kenney & Kearney, attorneys;
William J. DeSantis, on the brief).
Jay H. Greenblatt argued the cause for amicus
curiae, New Jersey State Bar Association
(Wilentz, Goldman & Spitzer, attorneys; Mr.
Greenblatt and Frederick J. Dennehy, of
counsel; Mr. Greenblatt, Mr. Dennehy and
Megan K. Gajewski, on the brief).
The opinion of the Court was delivered by
PORITZ, C.J.
This matter is before the Court for review pursuant to R.
1:20-16(a) of a decision of the Disciplinary Review Board ("DRB")
recommending that respondent, Joel A. Greenberg, be disbarred.
Based on information provided by Greenberg and on its own
investigation, the Office of Attorney Ethics ("OAE") filed a
formal complaint against respondent, alleging violations of
Rule of Professional Conduct 8.4(c) ("RPC"), conduct involving
dishonesty, fraud, deceit, and misrepresentation. The complaint
asserted that, during a sixteen-month period in 1992-1993,
respondent fraudulently obtained law firm funds for his own
personal use. Before the Special Ethics Master appointed to hear
the matter for the District XIV Ethics Committee, Greenberg
asserted that he "suffer[ed] from a mental illness which deprived
him of the ability to comprehend what he was doing and the will
to prevent it." The Special Ethics Master, and later the DRB,
found that respondent had not demonstrated "by competent medical
proofs that [he] suffered a loss of competency, comprehension or
will of a magnitude that could excuse egregious misconduct that
was clearly knowing, volitional and purposeful." In re Jacob,
95 N.J. 132, 137 (1984).
We find that Joel A. Greenberg knowingly caused his firm to
disburse monies to him that belonged to the firm without the
consent of his law partners and that he knowingly misappropriated
fees due the firm to his own use. We reaffirm the rule set forth
in In re Wilson,
81 N.J. 451 (1979), and extended in In re
Siegel,
133 N.J. 162 (1993), that misappropriation of client or
law firm funds will almost invariably result in disbarment. We
hold that disbarment is warranted in this case.
Joel A. Greenberg was licensed to practice law in New Jersey from 1975 until September 22, 1993, when he consented to the temporary suspension of his license. At the time of his suspension, Greenberg was a partner with Horn, Goldberg, Gorny, Daniels, Paarz, Plackter & Weiss ("Horn, Goldberg" or "the firm") in Atlantic City. Greenberg primarily represented health-care providers in medical malpractice actions.
In June 1991, Greenberg received a referral from Rochlin & Settleman, a Maryland law firm, and accepted the representation of Charles and Theresa Harrison in the matter of Harrison v. Cairn. When Greenberg settled the matter for a total of $42,500, he requested two checks from the insurance company, one for $35,000 made payable to the Harrisons and one for $7500 made payable to Greenberg personally. The insurance company refused and, instead, issued two checks for $21,250 payable to both Greenberg and the Harrisons. Rather than depositing the checks in the firm's trust account and issuing a firm check to the Harrisons, Greenberg endorsed the checks and forwarded them to the Harrisons accompanied by a request that they return a check in the amount of $7500 made out to him. When the Harrisons complied, Greenberg kept the fee without the authorization or knowledge of his law firm.
When Rochlin & Settleman subsequently sought a referral fee, Greenberg presented a check request to the firm bookkeeper, dated June 25, 1992, in the amount of $3000 payable to Rochlin & Settleman. On the request form, Greenberg indicated that the check was needed for the "reimbursement of expert fees pursuant to Court Order--Dr. Flynn." In the transmittal letter accompanying the request form, Greenberg explained that the check was for "reimbursement of expert testimony" in the matter of Pasquale v. Schwing.
Thereafter, from August 1992 until August 1993, Greenberg obtained an additional $27,025 in law firm funds for his personal use without the firm's knowledge or consent. The method he used was simple: he submitted a series of false disbursement requests to the firm's bookkeeping department. Respondent would either instruct a secretary that he needed a law firm check or dictate the check request on tape, after which an expense account voucher would be prepared and signed, either by Greenberg himself or by a secretary on his behalf. In support of the check request, Greenberg would also prepare a transmittal letter addressed to the payee. Once Greenberg received the firm checks, he would endorse them and retain the funds for his personal use or deposit them in the corporate checking account of Southern Shore Medical Supply ("SSMS"), an entity incorporated by Greenberg in December 1992. Respondent submitted eight such similarly structured requests in the twelve months preceding and up to August 17, 1993.
Three of the false disbursement requests made by Greenberg were sought as payment to local physicians. On August 31, 1992, Greenberg presented an expense voucher in the amount of $2000 payable to Dr. Denay Marino, along with a transmittal letter explaining that the check constituted payment for a deposition fee; on December 14, 1992, Greenberg submitted a check request in the amount of $2500 payable to Dr. Alan Forman, purportedly in payment for expert testimony; and, on July 23, 1993, Greenberg requested a check in the amount of $1875 payable to Dr. Glen Budnick for expert fees. Greenberg endorsed the Marino and Forman checks by forging the physicians' signatures. Because his wife worked part-time for Dr. Budnick at home, Greenberg had access to the Doctor's business stamp, which he used to endorse the Budnick check without Budnick's or his wife's knowledge or consent. In all three cases, Greenberg kept the funds for his own personal use.
Greenberg also requested a check made out to the bank holding his mortgage. On September 14, 1992, Greenberg requested $2900 payable to Investor Savings, with the submitted purpose of paying the State Division of Taxation in the matter of the estate of his uncle, Stanley Greenberg. Instead, respondent sent the check to Investor Savings to cover three months of mortgage payments on his home.
Greenberg made four additional fraudulent check requests during this period, each for payment to SSMS. At the District Ethics hearing, Greenberg denied that SSMS was "a fictitious corporation" set up for the purpose of laundering the Horn, Goldberg checks.See footnote 1 He claimed that he incorporated SSMS with his wife and a third person as a legitimate business for the sale of medical supplies to physicians. He conceded, however, that the business was not a client of the firm, was dormant, and that, aside from "minimal transactions" of which there is no proof in the record, "it's [sic] business activity consisted of--of accepting these payments and in turn paying them out" to respondent.
The record discloses that Greenberg established a corporate checking account for SSMS in the spring of 1993, just prior to making his first check request payable to the corporation. By requests dated May 20, May 28, and June 17, 1993, Greenberg received, endorsed, and deposited SSMS checks in the amounts of $1750, $3500, and $12,500, respectively. Though the initial bank statement for the SSMS account is not available, the bank statement for May 28, 1993 through June 30, 1993 shows that the $12,500 check was deposited and that the account balance at that time was $12,821.65. The June 30 statement also shows that Greenberg issued two checks on this balance: one for $3750 payable to himself on June 18, 1993, and one for $9000 payable to Investor Savings on June 22, 1993, noting in the memo portion of the check that it was intended to cover his May, June, and July mortgage payments.
By mid-June, Greenberg had fraudulently obtained $34,525 that belonged to his law firm. Then, on August 17, 1993, he made his final check request payable to SSMS in the amount of $23,500. The transmittal letter indicated that the disbursement was the "final installment" for the purchase by Sawyer Electric, a firm client, of an interest in SSMS. This time William Colavito, the firm's Chief Financial Officer, questioned Greenberg about his request. Respondent explained that the disbursement was to be counted against a $90,000 retainer from Sawyer Electric placed in the Horn, Goldberg business account earlier that year. When pressed on how the transaction could be charged against firm funds, Greenberg said, "If anyone ever found out about this I would be disbarred." Colavito reported the conversation to the firm's managing partner, Jack Plackter, who subsequently met with Greenberg. The firm reviewed respondent's check requests for the prior six months and discovered the three SSMS disbursements with his endorsements, but apparently took no action.
Three weeks later, on September 11, 1993, Greenberg approached friend and attorney Paul D'Amato during a function at respondent's synagogue. The two men retired to the parking lot for privacy where, D'Amato reports, Greenberg began to cry and shake, saying to his friend, "I don't know what I'm doing. You got to help me." D'Amato agreed to help, but Greenberg would not explain what was wrong. D'Amato found Greenberg's wife, who promised to have Greenberg meet D'Amato at his office the following morning.
At D'Amato's office the next day, Greenberg admitted that he had taken law firm funds. He told D'Amato that he could not remember when it started or how much he had taken but did mention an accident case and illegitimate vouchers. When he huddled in a corner crying, D'Amato called another friend and attorney, Ed Goldstein, to help him with respondent. As Greenberg calmed, he said, "[G]et me away from the practice of law. I don't think I know what I'm doing anymore."
Greenberg gave D'Amato permission to call his partners and, later that afternoon, three Horn, Goldberg partners met with Greenberg and D'Amato at D'Amato's office. At that point, however, Greenberg was incoherent and could not discuss the matter. D'Amato also called psychiatrist Dr. Norman S. Chazin to obtain treatment for his friend. Greenberg began meeting with Dr. Chazin the following day. With Greenberg's permission, D'Amato contacted the OAE on September 14, 1993, and the Atlantic County Prosecutor's Office on September 17, 1993. No charges were filed by the firm or the prosecutor. Respondent made full restitution to the firm. On September 22, 1993, he entered into a consent order temporarily suspending his license.
The OAE filed a formal complaint against Greenberg on January 13, 1995. During four days of hearings in November 1995 and January 1996 before a Special Ethics Master, Greenberg presented the testimony of his wife, friends, fellow attorneys, and two expert witnesses, Dr. Chazin and Dr. Gary Michael Glass. The OAE offered the testimony of Dr. Robert Sadoff.
Family, friends, and fellow attorneys testified to Greenberg's reputation in his community and to changes in Greenberg's personality from as early as August 1990 up to August 1993. Many vouched for Greenberg's excellent reputation and unquestioned integrity. He was perceived as an outgoing, friendly man who was known to participate in many community activities, including Margate City Little League and his synagogue.
There was also testimony by Paul D'Amato that, as early as August 1990, Greenberg appeared negative and lethargic and stopped answering telephone calls and interrogatories in a timely manner. Joseph Sayegh, another boyhood friend and attorney, noticed similar changes:
He always was an optimistic person. He
always had a sense of humor. He was always
kind. He always made a connection with
people. . . . And it was gone. . . . I mean
this was not a guy having a bad day. . . .
There was something wrong with him.
David Goldberg, friend and neighbor, testified that Greenberg,
once active in the community, had stopped socializing.
A. Michael Barker, a fellow partner, observed that Greenberg
began to keep his office door closed, "was withdrawn and . . .
there was some despondency." Greenberg's wife testified to
difficulties at home during this period.
Dr. Chazin, Greenberg's treating physician and first expert
witness, testified that respondent suffered from dysthymia, a
chronic, low-grade form of depression, which he attributed to
"childhood developmental issues and [a] family history of
depression."
Dr. Chazin also diagnosed Greenberg with major
depression and opined that, due to his condition, Greenberg "did
not have the requisite intent to steal from his law firm."
Instead, Greenberg's actions constituted a desperate attempt "to
keep himself from ego disintegration." In Dr. Chazin's view,
Greenberg "was not delusional, . . . did not suffer from
hallucinations or show any sign of psychosis[, and] . . . was not
'McNaughten' insane," though he remembered little about his acts
of misappropriation and lacked "any conscious appreciation" of
the self-destructiveness of his behavior. At the time of the
hearing, however, Dr. Chazin reported that Greenberg was fully
recovered, unlikely to repeat his antisocial behavior, and ready
to return to the practice of law.
Dr. Glass, Greenberg's second expert witness, diagnosed
Greenberg with dysthymia and adjustment disorder with depression,
or major depression. Dr. Glass agreed with Dr. Chazin that
Greenberg did not possess the requisite intent to "knowingly
misappropriate or steal" from the firm, explaining his behavior
as an unconscious cry for help:
At some level Joel Greenberg was aware that
he was doing this because, as I said before,
he did it and he behaved. I mean he didn't
just take the money and make a paper airplane
and throw it out the window. Yet, on the
other hand, the behavior was so odd . . .
without motivation, without attempt to
secrete [sic] his behaviors, without attempt
to pursue the behaviors in a way that will
get him greater gain . . . .
Dr. Glass agreed that Greenberg was not delusional or
"McNaughten" insane, that he knew the difference between right
and wrong.
However, when asked whether Greenberg lacked
"comprehension, competency or will," Dr. Glass responded
equivocally:
I'm not sure whether it falls under it, what
the right answer is. I believe that he was
not functioning with competence and will.
The will was for Mr. Greenberg to punish Mr.
Greenberg. The will was not to hurt the law
firm . . . , not to hurt clients. The will
was a cry for help.
Dr. Sadoff, testifying on behalf of the OAE, agreed with
Drs. Chazin and Glass that Greenberg suffered from major
depression, was not delusional, and was not "McNaughten" insane.
With respect to how depression affected Greenberg, Dr. Sadoff
differed:
He had a depression. His depression affected
him in a number of ways, but, as I indicated,
not selectively, not cognitively in the sense
that he could not know what he was doing or
be aware of the implications of the behavior
that he engaged in. He was able to try cases
and try them successfully. He knew the
outcome. He knew how to go about doing what
he had to do. He was active in the community
in doing things in other areas of his
life. . . . I just don't know of any mental
illness that would deprive him of his
cognitive functions in this particular area
and not globally, not across the board.
There's just no such illness.
Dr. Sadoff specifically disagreed with Dr. Glass's comparison
between Greenberg's actions and the actions of a driver who, upon
arriving home, has no recollection of the decisions made to get
there, distinguishing between Greenberg's complicated acts of
misappropriation and "the kind of rote, automatic behavior
performed on a daily basis that one could dissociate from and be
so preoccupied as to not remember." Rejecting the possibility
that Greenberg's depression caused selective amnesia or
dissociation, Dr. Sadoff concluded that respondent's condition
did not deprive him of knowledge of what he was doing or of the
ability to control his behavior.
Dr. Sadoff agreed, however,
that it was unlikely Greenberg would engage in misappropriation
again.
At the conclusion of the hearing, the Special Ethics Master found that Greenberg had "engaged in multiple acts of taking funds" from Horn, Goldberg, "without the authorization or knowledge of members of the firm," resulting in fraudulently obtained disbursements of $27,025See footnote 2 used by Greenberg for his own purposes. Based on our decision in Siegel, supra, 133 N.J. at 170, wherein we held that "knowingly misappropriating funds- whether from a client or from one's partners--will generally result in disbarment," the Special Master framed the issue before her as "whether or not Joel Greenberg 'knowingly' misappropriated money from partnership funds . . . , or whether any psychiatric condition existed which precluded his ability to 'knowingly' engage in acts of misappropriation." She found that Greenberg had not demonstrated "the magnitude of illness, impairment of judgment or severity of disability . . . [necessary] to provide mitigation or defense" for his acts of misappropriation and recommended disbarment.
The DRB, like the Special Master, asked whether Greenberg "knowingly" committed acts of misappropriation, i.e., whether Greenberg "took the funds knowing that they were not his . . . and knowing that the taking was unauthorized." Because Greenberg's experts "focused on motive, as opposed to intent," the DRB relied on testimony that Greenberg was aware he was taking money that was not his, and that his taking was unauthorized by the parties to whom the money belonged. A
four-member majority of the Board also recommended disbarment.
By leave of the Court, the New Jersey State Bar Association ("NJSBA" or "Bar") has participated in this case as amicus curiae. The NJSBA has asked us to reexamine the rule of Wilson, supra--that "generally" where an attorney has knowingly misappropriated clients' monies "disbarment is the only appropriate discipline." 81 N.J. at 453. In the Bar's view, the Court has consistently applied Wilson as a "strict liability" rule despite language in our decisions suggesting that, in appropriate cases, disbarment would not be automatically imposed. We acknowledge the correctness of the Bar's observation that, since Wilson, the Court has consistently and unwaveringly disbarred attorneys who knowingly took their clients' funds.
In re Noonan, 102 N.J. 157, 160 (1986); see also In re Hollendonner, 102 N.J. 21, 28-29 (1985) (holding "parallel" between escrow and client funds requires application of Wilson rule in cases involving knowing misuse of escrow funds). "Since this Court announced the bright-line Wilson rule in 1979, 'we have not retreated one bit from the principle that knowing misappropriation . . . will warrant the Wilson sanction of disbarment,' In re Konopka, 126 N.J. 225, 228 (1991), and have repeatedly rejected opportunities 'to create exceptions to the Wilson rule, even where the misappropriation was the product of severe personal and financial hardship,' In re Warhaftig, 106 N.J. 529, 535 (1987)." In re Roth, 140 N.J. 430, 444 (1995). Although we have recognized that "[t]he Wilson rule is harsh," In re Barlow, 140 N.J. 191, 195 (1995), we remain "convinced that nothing less will be consistent with our view of the devastating effect of misappropriation on the public's confidence in the bar and in this Court," Roth, supra, 140 N.J. at 444 (quoting In re Hahm, 120 N.J. 691, 697 (1990)).
There is nothing clearer to the public,
however, than stealing a client's money and
nothing worse. Nor is there anything that
affects public confidence more--much more
than the offense itself--than this Court's
treatment of such offenses.
Arguments for lenient discipline
overlook this effect as well as the
overriding importance of
maintaining that confidence.
Because of the harshness of Wilson, and because the sanction
of disbarment in New Jersey is permanent, we have demanded clear
and convincing evidence that an attorney has misappropriated
funds "knowingly." Roth, supra, 140 N.J. at 444; see Barlow,
supra, 140 N.J. at 196 ("Proof of misappropriation, by itself, is
insufficient to trigger the harsh penalty of disbarment. Rather,
the evidence must clearly and convincingly prove that respondent
misappropriated client funds knowingly."). In each case where
there has been an invasion of trust funds, we have carefully
considered the particular complex of facts in order to determine
whether "the lawyer intended it, knew it, and did it." Konopka,
supra, 126 N.J. at 234 (citing In re Librizzi,
117 N.J. 481,
490-91 (1990), In re Gallo,
117 N.J. 365, 371-73 (1989), and In
re Simeone,
108 N.J. 515, 521-23 (1987)). Attorneys who have
committed "flagrant record-keeping violations but not
. . . intentional misappropriation" have been severely
disciplined but not disbarred. Id. at 238; see, e.g.,
In re
LaVigne,
146 N.J. 590, 606-10 (1996) (suspending attorney for
three years who, inter alia, negligently misappropriated client
funds during complex land exchange transaction); In re Chidiac,
120 N.J. 32, 38-39 (1990) (suspending attorney for three years
whose negligent bookkeeping resulted in misappropriation of
client funds).
Thus, the harshness of disbarment has been
ameliorated by the Court's insistence on a high level of proof
that the attorney understood on some level what he or she was
doing and knowingly carried out a scheme to defraud.
In other cases, we have been unconvinced that attorneys
suffering from identifiable compulsive disorders, mental illness,
or mental conditions could demonstrate "a loss of competency,
comprehension or will of a magnitude that could excuse egregious
misconduct that was clearly knowing, volitional and purposeful."
Jacob, supra, 95 N.J. at 137;
see, e.g., Roth, supra, 140 N.J. at
448 (major depression);
In re Davis,
127 N.J. 118, 130-32 (1992)
(alcoholism); In re Spina,
121 N.J. 378, 390-91 (1990)
(narcissistic personality disorder);
In re Steinhoff,
114 N.J. 268, 273-74 (1989) (drug dependency); In re Nitti,
110 N.J. 321,
325-26 (1988) (compulsive gambling); Jacob, supra, 95 N.J. at
136-38 (thyrotoxicosis). In those cases we have independently
reviewed the record and determined that the "medical facts"
presented did not provide a sufficient basis for "a legal excuse
or justification" in mitigation of the respondents' acts of
misappropriation. Id. at 137. This result is consonant with the
Court's view, clearly expressed in Wilson, that disbarment would
"be almost invariable" in misappropriation cases.
The NJSBA seeks a less rigorous standard. The Bar has
suggested that an attorney guilty of knowing misappropriation of
a client's funds should not be disbarred if the attorney can
show, by clear and convincing evidence, that "an identifiable
illness . . . caused substantial impairment of judgment" and that
substantial additional mitigating factors unconnected to the
illness were present.
We have, however, revisited the Wilson
rule in the past and have concluded that strict conformity to
Wilson is appropriate and necessary. See, e.g., Konopka, supra,
126 N.J. at 231, 236-38 (declining to accept suggestion in
concurring opinion "that there should be exceptions to Wilson
'under special circumstances'"). We are mindful that in 1983 the
NJSBA supported permanent disbarment in cases of knowing
misappropriation "'without exception.'" Id. at 236 (quoting New
Jersey State Bar Association, Report of Select Committee to
Review Standards for Safeguarding Clients' Property 1-2, 6
(1983)). After a careful examination of the Bar's present
proposal, we have concluded that it represents a substantial
retreat from the standard enunciated in Wilson.
Today, we again
reaffirm the rule announced in Wilson and
hold that disbarment is the appropriate sanction in cases where
it has been shown, by clear and convincing evidence, that an
attorney has knowingly misappropriated client funds. We accept
as an inevitable consequence of the application of this rule that
rarely will an attorney evade disbarment in such cases. Public
confidence in the "integrity and trustworthiness of lawyers"
requires no less. Wilson, supra, 81 N.J. at 456.
Wilson necessarily focused on the trust extended from a client to his or her attorney and the terrible breach of that trust in a case involving the misappropriation of a client's funds. Id. at 454-57. That trust, although buttressed by knowledge of the individual attorney, springs from "faith . . . in the legal profession [and] the bar as an institution." Id. at 455. That trust is destroyed when a lawyer takes monies that belong to a client.
Under our Constitution, the Supreme Court “ha[s] jurisdiction over the admission to the practice of law and the discipline of persons admitted.” N.J. Const. art. VI, § 2. par. 3. In furtherance of this constitutional responsibility, the Court has promulgated the Rules of Professional Conduct as the regulatory framework for attorney discipline in appropriate cases. The RPCs serve as a road map for the conduct of attorneys to guide them in their relationships with their clients, other attorneys, the courts, and the public. The rules deal comprehensively with attorneys' obligations to their clients because that is what the practice of law is about--the representation of persons and entities in need of legal services. The Wilson rule reflects the application of the most exacting ethical standards to the relationship between attorneys and their clients.
The relationship of attorneys to one another is also subject to the Court's disciplinary oversight. Lawyers who join together to practice, as a partnership or professional corporation, convey a "message" to the public. In re Weiss, Healey & Rea, 109 N.J. 246, 251-52 (1988).
Such partnership implies the full financial
and professional responsibility of a law
firm that has pooled its resources of
intellect and capital to serve a general
clientele. . . . The public, we believe,
infers that the collective professional,
ethical, and financial responsibility of a
partnership-in-fact bespeaks the "kind and
caliber of legal services rendered."
[Id. at 252 (citation and footnote omitted).]
Lawyers who practice together are bound by those strictures
generally applicable to individual lawyers and by rules
specifically applicable to law firms.
Underlying each of the Rules that affect law firm
organization and the representation of clients by lawyers
practicing together is the interest in protecting clients, past,
present, and prospective, and concern about the public perception
of the bar. The RPCs control, among other things, the ability of
lawyers to form partnerships with non-lawyers, RPC 5.4, law firm
advertising, including firm names, RPC 7.1-.5, and the
disqualification of law firms based upon the conflicts of
individual lawyers in the firm, RPC 1:10. The rules are designed
to protect clients by insuring that non-lawyers are not
practicing law, that clients and potential clients receive
accurate information about law firms, and that confidentiality is
maintained. Law firms are the vehicles through which clients
retain individual attorneys and the cultures in which those
individual attorneys function once retained. It is the firm's
reputation--the sum of the reputations of the lawyers practicing
together--that attracts clients and that suggests the lawyers in
the firm can be trusted with the clients' most difficult problems
and with the clients' assets. Lawyers who betray their partners
betray that trust.
Most important, the Court has recognized "no ethical
distinction between a lawyer who for personal gain willfully
defrauds a client and one who for the same untoward purpose
defrauds his or her partners." Siegel, supra, 133 N.J. at 167.
Our perception that such acts of theft are morally equivalent
does not derive from the relationships between attorneys and
their clients or attorneys and their partners but, rather, from
our belief that "misappropriation from the latter is as wrong as
from the former." Id. at 170. Moreover,
it is not clear that a
distinction between client funds and firm funds is readily made
by the average person. The general public is unlikely to know
that attorneys are required to maintain separate accounts for
client and firm funds, RPC 1.15,
and may fear that the
misappropriation of firm funds is synonymous with the
misappropriation of client funds. It is this threat to public
confidence in the integrity and trustworthiness of the bar that
motivated the Court in Wilson.
The Wilson rule, as described in Siegel, supra, applies in
this case:
"In the absence of compelling mitigating factors
justifying a lesser sanction, which will occur quite rarely,
misappropriation of firm funds will warrant disbarment."
133
N.J. at 167-68 (citations omitted)
.
Respondent contends that the Wilson rule should not apply to him because his acts of misappropriation pre-dated Siegel, which was decided on July 23, 1993. Id. at 162. The record, however, does not support his claim.
On July 23, 1993, the day Siegel was filed, respondent requested and obtained a check made payable to Dr. Budnick. In the days following, when the New Jersey legal periodicals were circulating and critiquing the Siegel opinion, see, e.g., Supreme Court; In the Matter of Steven G. Siegel, an Attorney-at-Law, State Digests, N.J.L.J., July 26, 1993, 73-76; Court Says Thefts From Firm Call for Disbarment, N.J.L.J., August 9, 1993, 5, 35, respondent took no steps to return funds previously taken. Rather, on August 17, 1993, he requested an additional $23,500 in the name of Sawyer Electric to be drawn on firm funds. When questioned by the firm's Chief Financial Officer about his request, respondent stated, “If anyone found out about this I would be disbarred.” We cannot but conclude that respondent was well aware of the post-Siegel consequences of his final request. Even then, he did not conform his conduct to the requirements of law or of the ethics rules.
In any case, prior to this Court's decision in Siegel, it was clear that acts of theft often carried the sanction of disbarment. See, e.g., Spina, 121 N.J. at 390 (disbarring attorney who pled guilty to federal misdemeanor of taking property belonging to employer, including false reimbursements and checks intended for employer); In re Lunetta, 118 N.J. 443, 446-50 (1989) (disbarring attorney who, for his participation in conspiracy to receive, sell and dispose of stolen securities, realized profit of $20,000 to $25,000); In re Surgent, 104 N.J. 566, 567-69 (1986) (disbarring attorney who was guilty of, inter alia, conspiracy to commit theft by deception, stock fraud, and sale of unregistered securities); In re Alosio, 99 N.J. 84, 90 (1985) (disbarring attorney who engaged in conduct violating Disciplinary Rule 1-102(A)(3), (4), predecessor to RPC 8.4(b), (c), and thereby "demonstrate[d] his unfitness to remain as a member of the bar"). The Siegel Court rejected a similar argument "that respondent's lack of notice compels a lesser sanction," Siegel, supra, 133 N.J. at 168, and we agree. The Wilson/Siegel rule is appropriately applied in respondent's case.
Although Greenberg admits that, over a period of sixteen months, he obtained $27,025 in Horn, Goldberg funds, retained the $7500 Harrison personal injury fee, and used these funds for his own purposes without the firm's knowledge or consent, he argues that he is not guilty of knowing misappropriation. Rather, he asserts that he has satisfied the Jacob standard--that he was suffering from a mental illness which caused him to suffer a "loss of competency, comprehension or will"--through expert testimony proving that his motive was to hurt himself not his firm, that he was out of touch with reality, and that he had no conscious awareness of his actions. At its core, respondent's argument is framed both as an affirmative defense to the "knowing" misappropriation requirement of the rule, and as a presentation of substantial mitigating circumstances that he claims justify his conduct.
In respect of his intent, respondent's expert Dr. Glass, testified:
The will for Mr. Greenberg was to punish Mr.
Greenberg. The will was not to hurt the law
firm of Horn [Goldberg], not to hurt clients.
The will was to cry for help. So however we
define that, I believe that he did not have
the intent to commit criminal activity. He
had the intent to call attention to his own
personal plight, personal pain and personal
suffering.
By his expert's testimony, respondent attempts to draw a
distinction between "taking" and "stealing," that is, he does not
deny his intent to "take" firm funds but, rather, denies that his
motive was to "steal" firm funds, to hurt the firm or its
clients.
This distinction does not assist respondent. Wilson
suggested, and we have consistently held, that "[t]he motive of
the lawyer is irrelevant in determining the appropriate
discipline for knowing misappropriation." Roth, supra, 140 N.J.
at 444; Warhaftig, supra, 106 N.J. at 533; Wilson, supra, 81 N.J.
at 455 n.1 (holding that misappropriation does not depend on
"whether or not [an attorney] derives any personal gain or
benefit therefrom"). In Noonan, supra, we elaborated by example
our firm conviction that an attorney's motive is simply not
material in a misappropriation case:
It makes no difference whether the money is
used for a good purpose or a bad purpose, for
the benefit of the lawyer or for the benefit
of others, or whether the lawyer intended to
return the money when he took it, or whether
in fact he ultimately did reimburse the
client; nor does it matter that the pressures
on the lawyer to take the money were great or
minimal. The essence of Wilson is that the
relative moral quality of the act, measured
by these many circumstances that may surround
both it and the attorney's state of mind, is
irrelevant: it is the mere act of taking
your client's money knowing that you have no
authority to do so that requires disbarment.
See also Barlow, supra, 140 N.J. at 195 ("Even when the lawyer
'borrows' without permission rather than steals, we have
invariably imposed disbarment rather than a lesser sanction.").
Respondent's motive, whether it was to hurt himself or to hurt
his law firm, is irrelevant.
In making the determination whether an attorney lacked
competency, comprehension or will, we have considered whether he
or she was "out of touch with reality or unable to appreciate the
ethical quality of his [or her] acts." In re Bock,
128 N.J. 270,
273 (1992). Respondent relies on the testimony of two experts to
support his claim that he was "out of touch with reality" and had
no conscious awareness of his actions when he misappropriated
firm funds. Dr. Glass stated that respondent was "out of
conscious touch with reality;" Dr. Chazin spoke of some form of
dissociation:
If he were truly consciously aware--and I
think that part of his problem was that it
was not available to his consciousness. Even
though he didn't suffer from a dissociative
disorder, I think that he dissociated when he
did this. He was on a different plane. He
was almost like a self-hypnotic kind of
different person.
Neither expert goes so far as to claim that respondent was out of
touch with reality or, alternatively, that he did not know what
he was doing when he committed multiple acts of misappropriation.
Instead, Drs. Chazin and Glass opine that respondent's acts of
misappropriation were available to his consciousness for only
short periods of time--during and just after the acts took
place--after which they were confined to his subconscious.
Rather than supporting respondent's claim, this testimony
indicates that respondent did understand what he was doing at the
time he was doing it.
Moreover, we find unpersuasive the expert testimony that
respondent was not conscious of what he was doing because his
acts of misappropriation were kept isolated from his
consciousness by his subconscious drive to self-destruct. Drs.
Chazin and Glass testified that respondent's acts of theft were
caused by his mental disorder. Although respondent's friends and
colleagues stated that, in retrospect, he had begun to withdraw
from many of his former activities, he continued to function as
an attorney and to participate in various social and religious
activities. Even respondent admits that during this period he
was "trying cases and functioning as an attorney." No reasonable
explanation has been provided for respondent's ability generally
to function as a normal person in everyday life and yet suffer
from a mental illness causing him to devise a complicated system
of misappropriation unavailable to his consciousness. Dr. Sadoff
testified, "I just don't know of any mental illness that would
deprive him of his cognitive functions in this particular area
and not globally, not across the board. There's just no such
illness." Based on this testimony and the facts presented, the
Court finds respondent's claim of selective amnesia unpersuasive.
Neither of respondent's experts testified that during the
time he was stealing money from his law firm he was unable to
appreciate the difference between right and wrong or the nature
and quality of his acts. See In re Baker,
120 N.J. 496, 505
(1990) ("Here, as in Romano, respondent 'has failed to
demonstrate that a disease of the mind rendered him unable to
tell right from wrong or to understand the nature and quality of
his acts.'" (quoting In re Romano,
104 N.J. 306, 311 (1986)).
Indeed, respondent's own words clearly indicate he understood
that his acts were wrong. Nor did respondent's experts say that
respondent's will was overborne or that he otherwise satisfied
the Jacob standard.See footnote 3
Respondent carried out a carefully constructed scheme
constituting a "'pattern of activity,'" Siegel, supra, 133 N.J.
at 167 (quoting Spina, supra, 121 N.J. at 390), over the course
of more than one year. He engaged in multiple acts of
misappropriation, taking $34,525 from Horn, Goldberg that he used
for his own purposes without the authorization or knowledge of
members of the firm. Respondent kept a fee due his firm by
instructing his clients to issue him a check in the fee amount.
Respondent authored numerous fraudulent check requests and
transmittal letters designed to obtain firm funds without
detection. Respondent forged signatures, "borrowed" a business
stamp and, in the case of checks issued to SSMS, signed his own
name in order to cash the checks. Respondent made calculated
withdrawals and never created overdrafts. He used the monies he
obtained for his own personal purposes, including mortgage
payments on his residence and country club dues. This pattern of
activity does not suggest an attorney suffering such a loss of
competency, comprehension or will that he was unable to comply
with the rules of ethics; it evidences an attorney who, through a
complex plan, sought to defraud his law firm.
Respondent's mental illness, however severe, did not deprive
him of the knowledge that he was taking firm funds, that the
funds belonged to his firm, or that his firm had not authorized
the taking.
Greenberg also argues that substantial mitigating factors should excuse his conduct. In similar cases, where attorneys have asserted a disorder, illness or condition as a mitigating factor, we have required "adequate proof that the underlying disability was so severe as to excuse or mitigate the ethical violation." In re Trueger, 140 N.J. 103, 116 (1995). In this case, we have determined that respondent's mental illness did not meet the standard set by this Court in Jacob, supra, and therefore failed to support his asserted affirmative defense to knowing misappropriation. For the same reasons, respondent's mental illness does not serve to mitigate his conduct. We recognize that all three experts in this case agreed respondent suffered from depression. Yet "[m]any lawyers have suffered far worse without stealing from their clients or their partners. We cannot excuse respondent without exonerating every lawyer who suffers personal hardships and misappropriates funds." See footnote 4 Siegel, supra, 133 N.J. at 171.
Respondent also asserts the following mitigating factors unconnected to his illness: voluntary notification of wrongdoing to his partners, the prosecutor's office and the OAE; lack of a criminal complaint filed by his firm; lack of criminal charges filed by the prosecutor's office; admission of wrongdoing; voluntary suspension of license since 1993; full restitution; cooperation with the OAE; extensive rehabilitation; and a previously outstanding reputation in the community.
Following his confrontation with the firm's Chief Financial Officer, respondent authorized his friend D'Amato to notify the firm, the prosecutor and the OAE about his illegal activities. Respondent claims that this notification was voluntary. The record, however, supports an inference that he only came forward because he feared discovery. See supra at ___ (slip op. at 6-7). As for respondent's reliance on the failure to prosecute, whatever reasons the prosecutor and the firm had for declining to press charges, we cannot ignore respondent's admissions to criminal acts of misappropriation. Moreover, we cannot accept as mitigating factors his admission of guilt and subsequent voluntary suspension of license because he acted only after he believed the firm knew what he had done. On the issue of restitution, Wilson, supra, held: "'We do not attach very much importance, as a rule, to the matter of restitution, because that may depend more upon financial ability or other favoring circumstances than repentance or reformation.'" 81 N.J. at 457-58 (quoting In re Harris, 88 N.J.L. 18, 22-23 (Sup. Ct. 1915) (en banc)).
Respondent raises two additional mitigating factors: his rehabilitation and his reputation. In respect of respondent's rehabilitation efforts, Drs. Chazin, Glass and Sadoff agree that respondent has undergone extensive treatment and, should such treatment continue, is unlikely to commit unethical behavior in the future. To permanently disbar him now may appear unjust. Again, in Wilson, the Court addressed the apparent injustice flowing from the disbarment of an arguably rehabilitated attorney:
To disbar . . . despite the possibility that
such reformation may occur is so terribly
harsh as to require the most compelling
reasons to justify it. As far as we are
concerned, the only reason that disbarment
might be necessary is that any other result
risks something even more important, the
continued confidence of
the public in the
integrity of the bar and
the judiciary.
See also In re Hughes,
90 N.J. 32, 36-37 (1982) ("[E]ven if it is
unlikely that the attorney will repeat the misconduct, certain
acts by attorneys so impugn the integrity of the legal system
that disbarment is the only appropriate means to restore public
confidence in it."). Respondent's acts of theft cannot be
excused by his subsequent treatment.
We disagree with the Bar's conclusion that, "[i]f Joel
Greenberg is disbarred, the message to all attorneys who suffer
from mental illness, alcoholism, or drug addiction is that they
should not come forward, should continue to practice, should
continue to represent clients, and should not seek help." We do
not sanction Greenberg because he suffers from a mental illness.
Greenberg betrayed a sacred trust--he stole money from his
partners. The message which this case sends to the bar is not
that attorneys in need of assistance should continue to practice
without seeking help but, rather, that such attorneys should seek
help as soon as possible and certainly if they are about to
engage in activities that will irreparably damage their
professional reputation and the public's confidence in the
integrity of the Bar.
Greenberg's exemplary reputation among his peers and within
his community has not gone unnoticed by this Court. We are in
receipt of over 120 letters testifying to his honesty and
integrity. He was a partner in a successful law firm and has, by
all accounts, served his clients well. But he is unfortunately
not the only attorney with an outstanding reputation who has
committed acts of theft and has been disbarred. See, e.g.,
Siegel, supra, 133 N.J. at 167; In re Kelly,
120 N.J. 679, 689
(1990). This is because "the primary reason for discipline is
not to punish the attorney [but,] rather, . . . to preserve the
confidence of the public in the integrity and trustworthiness of
lawyers in general.'" Gallo, supra, 117 N.J. at 373-74 (quoting
Wilson, supra, 81 N.J. at 456). Here, as in Siegel, supra,
"[t]he egregiousness of respondent's dishonesty should have been
readily apparent to so distinguished a practitioner." 133 N.J.
at 171. We cannot excuse his conduct.
Respondent is disbarred. He is ordered to reimburse the
Disciplinary Oversight Committee for appropriate administrative
costs.
JUSTICES HANDLER, POLLOCK, GARIBALDI, and COLEMAN join in
CHIEF JUSTICE PORITZ's opinion. JUSTICE STEIN has filed a
separate dissenting opinion, in which JUSTICE O'HERN joins.
SUPREME COURT OF NEW JERSEY
D-
40 September Term 1997